SHAH NAWAZ vs THE STATE

ORDER

1. ' BIN YAMIN, J.--- This bail application has been made on behalf of applicant/accused Shah Nawaz son of Shah Zaman, who is detained in Crime No,18 of 2007, registered under sections 302, 324, 384, 147, 148 and 149, P.P.C. At Police Station Tando Jam, District Hyderabad.

2. ' Brief facts of the case are that on 21-2-2007 complainant Muhammad Arif lodged above noted F.I.R. At Police Station Tando Jam stating therein that on 20-2-2007 while he was present in the house of his uncle late Abdul Waheed, at about 1115 hours his brother Muhammad Abid informed him that his nephew Majid, who is student of Agricultural University Tando Jam has seriously been injured and has been taken to Civil Hospital, Hyderabad for treatment. In pursuance of that information, complainant along with his brother Muhammad Abid and Muhammad Shahid went to Civil Hospital, Hyderabad where they found injured Majid lying in injured condition in Emergency Ward of the Hospital. At that time Majid was unconscious, whereas, another student namely Waqas Rajput was lying near his bed in injured condition. It is further stated that on enquiry Waqas informed complainant that on that day at about 9-45 a.m. Some boys of University came and demanded "Bhatta" from him. He further disclosed that when he refused to pay them "Bhatta", those boys started him beating etc. In the meanwhile injured Majid came there whom Waqas narrated factual position of the case. It is further stated that when they were talking with each other, in the meanwhile the other boys namely Malik Soomro, Asif Chandio, Nadir Soho having pistols in their hands, whereas Khalil Junejo, Farrukh Pathan, applicant/accused, Mukhtiar Chandio and others 20/25 unidentified boys having iron rods, chains and hunters in their hands came there and attacked upon them. He further disclosed that the said incident Malik Soomro, Asif Chandio and Nadir Soho caused pistol butt blows on the head of Majid and seriously injured him, who on sustaining afore noted injuries became unconscious and fell down on the ground; that the said boys also caused iron rod blows to the injured Majid who was lying on the ground. In the meanwhile companions of injured came there and took them to R.H.C. Hospital, Tando Jam from where they were referred to Civil Hospital, Hyderabad. The complainant further stated that yesterday in the evening time, Majid was operated upon from 6-00 p.m. To 10-00 p.m. But he did not regain his senses, then the complainant left his brother at hospital and came to police station to lodge F.I.R. The complainant further stated that on regaining his senses Majid himself will disclose further to the police. After recording the F.I.R. Police arrested the applicant/accused in this case. It is further stated that subsequently, Majid succumbed to the injuries and died in the hospital.

3. ' Earlier bail application on behalf of the applicant/accused was filed in the Sessions Court, which was finally disposed of by IIIrd Additional Sessions Judge, Hyderabad, who rejected the same under his order, dated 17-10-2007, hence this bail application.

4. ' Heard Advocate for applicant/accused, Mr. Muhammad Azeem Panhwar, learned State counsel and perused the case papers.

5. ' Learned counsel for the applicant/accused submitted that though the name of the applicant/accused find place in the F.I.R. But no specific part has been assigned to him; that there is general allegation that he along with other accused of this case caused iron rod injuries to the deceased Majid. He further contended that in the F.I.R. It is also stated that accused Malik Soomro and others caused pistol butt injuries on the head of Majid; that the post-mortem report of deceased Majid shows that he had only one injury on his head which as per opinion of the doctor was caused to him with hard and blunt substance; that at this stage it cannot be said with certainty that the said injury was caused to the deceased Majid by the applicant/accused, therefore, in such situation the case of the applicant/accused falls within the purview of a case of further inquiry. In this regard, he has referred to a case of Muhammad Aslam v. State PLJ 1996 SC 156(sic). He further submitted that when it cannot specifically be said that which of the accused caused fatal injury to the deceased Majid, on this count the case of the applicant also falls within the purview of a case of further inquiry. He placed reliance on Jaffar v. State 1980 SCM R 784. He, therefore, requested for grant of this bail application and release of the applicant/accused on bail during the pendency of the case.

6. ' On the other hand, learned State counsel has vehemently opposed this bail application and submitted that as per F.I.R. Applicant/accused was armed with iron rod at the time of this incident.

7. Furthermore, at the time of post-mortem of the deceased Majid it was found that on his head he has sustained fatal injury caused by hard and blunt substance; that when there is allegation that applicant/and co-accused caused fatal injury to the deceased, then at bail stage it is immaterial as to who caused fatal injury to the deceased. In this respect, he has relied upon the case of Haji Gulu Khan v. Gul Daraz Khan 1995 SCM R 1765. He further stated that one iron rod has also been recovered on the pointation of the applicant/accused during the investigation, which shows that the applicant/accused at the time of this incident has used the same iron rod in the commission of the offence; that the case is at preliminary stage and evidence of none of the prosecution witnesses has been recorded, he, therefore, requested for rejection of the instant bail application.

8. Perusal of the case papers shows that the name of the applicant/accused find place in the F.I.R. Of the matter. It has further been recorded in the F.I.R. That at the relevant time, applicant/accused was armed with iron rod and he also used the said iron rod in the commission of this offence. The said iron rod was recovered subsequently on the pointation of the applicant/accused. There is nothing available on the record to show that the complainant party has any motive or reason to falsely implicate the applicant/accused in this case. A Furthermore, the case is at preliminary stage and evidence of none of the prosecution witnesses has been recorded. It is also settled law that at bail stage the Court cannot undertake deeper appreciation of the evidence of the prosecution. In my humble opinion at this stage, there are reasonable grounds to believe that the applicant/accused is involved in the commission of the offence, for which punishment provided is death or imprisonment for life, therefore, his case falls within the prohibitory clause of section 497, Cr.P.C., hence finding no merit in the instant bail application, I hereby dismiss the same.

9. 'Before parting with this order, I would direct the learned trial Court to record the evidence of all the material witnesses of the prosecution, within preferably a period of six months after receipt of this order, whereafter the applicant/accused will be at liberty to repeat such application, if so advised.